Local travel agent appeal sets a major legal precedent

A successful appeal by a Gosford travel agent to the NSW Civil and Administrative Tribunal Appeals Panel (NCAT) is being hailed as setting an important legal precedent.

The Australian Federation of Travel Agents (AFTA) said the Panel decided to set aside orders that travel agent Wendy Kiss, owner of Helloworld Gosford, refund a consumer for bookings made with Air Canada and Momento Travel, who offered credits and a partial refund.

The airfares were for non-refundable tickets and the payments to Momento Travel were for non-fundable reservations with hotels in Canada and for the Rocky Mountaineer railway excursion.

AFTA funded Kiss’s initial unsuccessful appeal against a NCAT decision that the contract was frustrated and that she needed to refund the consumer in full the sum of $9,092.

AFTA then provided Kiss with the support of respected consumer law expert Hank Spiers to assist with the written submissions for the second appeal, which was successful.

Kiss, who paid the amount to the consumer from her own personal funds following the original ruling, said she was relieved at the decision.

“I understand that consumers get frustrated and want their money back but it’s not the travel agent sitting on the money that is the problem,” she said.

“I felt I had to keep appealing given the principle of the matter and the flow-on ramifications for my agency and every other agency if we didn’t get a fair and reasonable outcome.

“COVID has not been kind to the travel industry over the past 18 months.

“No one was prepared for how long it would go on or what it would mean for us.

“Thousands of people had booked holidays right through to 2020.

“Obviously they want their money back but it’s really complicated – the money doesn’t sit with us, it gets sent off to airlines and suppliers and we are governed by international rules and regulations.

“If they say only credits are available that’s what we have to go by.”

Kiss said if the ruling hadn’t been overturned it could have set a dangerous precedent and potentially sent many travel agents broke.

The consumer will now have to repay the funds to Kiss.

Kiss said airlines and tour companies were extending credits and she was hopeful travel bubbles would reopen as early as the first quarter in 2022.

AFTA Chair Tom Manwaring said the case represented a win for Australian travel agents.

“AFTA will continue to support Tribunal applications and responses selectively and strategically in order to shape the legal landscape within which we operate,” he said.

“While Tribunal decisions aren’t binding on the courts, this is an important outcome and we are very grateful to Wendy for her resilience, persistence and tenacity.”

AFTA is the peak body in Australia representing the retail travel industry.

Founded in 1957, AFTA represents the majority of travel agents in Australia and includes all of the major travel agency groups.

Media release, Jul 21
Australian Federation of Travel Agents
Interview, Jul 21
Wendy Kiss